Rahja v. Current
| Decision Date | 01 February 1963 |
| Docket Number | No. 38603,38603 |
| Citation | 264 Minn. 465,119 N.W.2d 699 |
| Parties | Mrs. Mae RAHJA, Appellant, v. Milo CURRENT, Respondent. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In a personal injury action where the defense of contributory negligence against a passenger in an automobile is pleaded and proof is attempted, and where the parties are in contention as to whether evidentiary support exists to warrant submitting the issue to the jury, it is incumbent upon the court either to submit the issue, if justified by the evidence, or affirmatively to withdraw it by appropriate instructions.
2. The phrase 'unavoidable accident' included as a part of cautionary instructions to a jury Held inapplicable to an action arising out of an automobile upset occasioned by a highway washout where such upset under the evidence was proximately caused either by the negligence of the driver or of third parties, or by their concurrent negligence.
Wangensteen & Bangs, Chisholm, for appellant.
Spellacy, Spellacy, Lano & Anderson, Marble, for respondent.
This is a personal injury action which arose as a result of an automobile's striking a highway washout during the nighttime. The jury returned a verdict for defendant-driver. Plaintiff, a passenger and the owner of the automobile, appeals from a denial of her posttrial motions.
The essential problem is presented by plaintiff's claim that a new trial should have been granted because of errors in the instructions to the jury.
Defendant, aged 70, a retired servicestation operator, is a neighbor of plaintiff, a widow aged 59. They reside at Hibbing. Plaintiff is an inexperienced driver who owns an automobile inherited from her husband and unused since his death nearly a year previous to the accident. On June 13, 1960, plaintiff readily accepted defendant's offer to drive her in her automobile to Meadowlands, about 30 miles south of Hibbing, so that she could visit her sister. While driving there that afternoon, as they approached the village of Toivola, both plaintiff and defendant noticed and remarked about the hazard created by a rather large washout cutting into the opposite lane of travel of the highway. No further comment or investigation was then made. The only warning sign defendant observed was an amber flasher apparatus attached to a wooden sawhorse. This warning was placed some distance south of the washout and, because of the daylight, there was no indication that the flasher was operating.
The washout as described and shown by photographs was in the nature of a cave-in or dropping away of the road surface and was semicircular in shape between 25 to 30 feet along the shoulder. It cut into more than half of the east lane of the roadway. The roadway at this point was straight, was nearly level, had a 24-foot blacktop surface, and, except for the washout, was in good condition.
There was evidence that it had rained sometime between the parties' arrival at the home of plaintiff's sister and their departure for Hibbing around midnight of the same day. When they left, a light rain or drizzle was still falling, necessitating the operation of windshield wipers and causing the roadway to be wet and to reflect the headlight beams. There were also noticeable patches of ground fog. No evidence was offered to prove that defendant appeared tired or that his familiarity with automobiles or his skill in driving was in any way affected, or that plaintiff's acknowledged confidence in his ability to safely operate her automobile was in any manner reduced. As the automobile approached the washout area, defendant testified that he noticed a warning flasher some 100 or 150 feet from the washout. Apparently having forgotten both the existence and the location of the washout, he turned into the left lane to avoid what he thought was a truck pulled onto the side of the highway which appeared to display a type of warning signal he had previously observed during his driving experience. He noticed nothing other than the flasher which appeared to him to be located off or upon the edge of the highway. After driving approximately 75 feet at a speed of less than 35 miles per hour and seeing no other warning or danger, he began turning into his lane of travel. At this moment his right wheels dropped into the washout, whereupon he lost control and the automobile immediately began rolling over and settled at the bottom of a ditch a considerable distance below the surface of the highway. Before the impact, neither defendant nor plaintiff saw the many warning flags or delineators around the cave-in, or any other flasher signal farther down the road. The plaintiff testified that she was awake, although resting and listening to the radio at the time. A day following the accident, plaintiff admitted that she found no fault with defendant's driving, asserting that he was a 'very, very cautious driver.'
As is demonstrated by the foregoing brief recital of the evidence in the light most favorable to defendant, plaintiff's claim that defendant's negligence appears as a matter of law is without merit. 1 This contention and her other assignments of error, which we have reviewed, would not justify disturbing the verdict were it not for the impropriety of the court's failure to affirmatively withdraw the issue of contributory negligence and of the instructions relative to unavoidable accident.
1. The defense of contributory negligence was both pleaded and urged by defendant throughout the trial. Cross-examination of plaintiff was directed toward emphasizing that it was her automobile defendant drove; that she was more familiar with the highway; and that because of the disparity in age between ...
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Miller v. Alvey, 30785
...Co. (1927), 317 Mo. 108, 118, 296 S.W. 157, 161; Chaar v. McLoon (1924), 304 Mo. 238, 246, 263 S.W. 174, 175; Rahja v. Current (1963), 264 Minn. 465, 470, 119 N.W.2d 699, 702; Owen, Administrator v. Moore (1958), 166 Neb. 226, 232, 88 N.W.2d 759, 764; Horrocks v. Rounds (1962), 70 N.M. 73, ......
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Holten v. Parker
...to cases where there is some evidence of causation by an act of God or acts chargeable to an unknown agency. (See, Rahja v. Current, 264 Minn. 465, 119 N.W.2d 699 (1963).) We have also held that the failure to give such an instruction, even where it might have been appropriate under the fac......
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Herman v. Spiegler
...was not prejudicial error. This is not approval of its use as a stock instruction in negligence actions. In Rahja v. Current, 1963, 264 Minn. 465, 119 N.W.2d 699, the court in awarding a new trial stated as there was no proof that a 'sudden storm' produced the washout the concept of unavoid......
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Nelson v. Nelson, 49207.
...issue of a passenger's contributory negligence is a limited one. See, Young v. Wlazik, 262 N.W.2d 300 (Minn. 1977); Rahja v. Current, 264 Minn. 465, 119 N.W.2d 699 (1963). As was summarized by this court in Young v. Wlazik, "A passenger in an automobile assumes a duty not to ride with an in......